5.01.2012

TOP ENTERTAINMENT LAWYER MARK LITWAK ON JOBS ACT

Although Republicans and Democrats rarely agree on anything these days, Congress has passed and President Obama signed on April 5, 2012 the JOBS (Jumpstart Our Business Startups) Act, a collection of laws that dramatically relaxes regulations on raising capital for startup companies. The law was backed by Republicans, as well as tech companies and their venture capital backers. While encouraging independent filmmaking was not on the mind of Congress when it passed this law, it promises to dramatically expand the ability of filmmakers to raise financing for their projects.

In Silicon Valley, entrepreneurs often raise large amounts of capital for risky start-ups. However, the number of Initial Public Offerings is much less than it was before the dot com bubble burst. In 1996, there were 791 Initial Public Offerings (IPO) while from 2001 to 2008 the average was a mere 157 a year. Of course, this reduced activity may be due to investors assuming a more prudent investment strategy after losing their shirts in the dot com crash, or it could be a reaction to new regulations. Among other changes enacted, Wall Street firms are prohibited from promoting stocks with their own questionable research, an obvious conflict of interest.

The new Act relaxes some restrictions for smaller emerging growth companies. It seeks to encourage entrepreneurs because most new jobs are created by small businesses, not large ones. Consequently, this new law could be the impetus for an economic boom – at least that is the hope of its backers. No doubt, some of the “reforms” in the Act are of questionable merit and could open the door to new abuses. However, the current laws governing the raising small amounts of capital are unduly onerous for entrepreneurs, and have been for many decades. Furthermore, these laws have clearly not kept pace with technological change and the methods we use nowadays to communicate with one another. If anyone understands the potential of the crowd, it should be President Obama. In the last presidential election, he raised nearly three-quarters of a billion dollars from Internet solicitations, mostly small donations.

Most promising for indie filmmakers, the JOBS Act contains provisions that for the first time will allow internet crowdfunding for the production of films. Crowdfunding is a method of raising capital by obtaining small amounts of money from a large number of investors. Although existing companies like Kickstarter.com and IndieGoGo currently enable filmmakers to raise funding through donations (i.e., gifts), this new law, when it becomes effective, will allow filmmakers to raise up to one million dollars in equity investments by soliciting the general public without the prior restraints.

The prime restriction that hampered filmmakers from raising funds using the internet was the prohibition on public solicitation for what are called private placements. Public solicitation is any form of advertising or approaching strangers such as by putting leaflets on their car windows. Up until now, the law has required a “pre-existing relationship” between the filmmaker and the potential investor. It was not always clear how much of a relationship was required. There are filmmakers today who have thousands of "friends" on Facebook. Some of these connections may be fairly tenuous and the filmmaker may have never met some friends in person. Do these contacts count as a pre-existing relationship if the extent of the bond is merely accepting an invitation to connect? Fortunately, these kinds of issues don’t seem to matter much anymore with the passage of the JOBS Act.

For many businesses, a million dollars is not a lot of money, but for filmmakers it can be more than sufficient to produce a feature film. Indeed, with the use of digital cameras and a laptop with Final Cut Pro, many films are made for less. Moreover, about 40 states now offer production incentives, enabling producers to stretch their funding. And by spreading the risk among a large pool of small investors through crowdfunding, no one gets burned badly if the movie flops.

The major problem with film investments has always been their extreme risk and the expense involved in complying with the laws that regulate investments. Filmmakers were free to go after an unlimited number of high rollers they had relationships with, plus up to 35 middle class investors. But most aspiring indie filmmakers don’t hang around the craps table in Vegas and don't know many wealthy individuals. So they often relied on friends and family, or their own resources, including borrowing money against one's house, or at least in one celebrated instance, selling their blood. Other filmmakers used various subterfuges to reach potential investors and hoped the SEC would not notice. Most of the time the authorities paid them no mind as they had bigger fish to fry. I once spoke to a federal prosecutor on behalf of a client who had been defrauded of several hundred thousand dollars in a fraudulent film investment. The prosecutor confessed that unless at least a million dollars was at stake, the case was just too small for him to pursue. There are just too many bigger crooks out there.

Crowdfunding may hold another advantage for filmmakers unrelated to raising money. One of the major problems facing independent filmmakers is how to market and distribute their completed movies. Today it is a buyer's market and distributors have thousands of films to choose from when deciding what to acquire. Of course, self-distribution is always an option, and anyone can put their film up on YouTube or other portals. But without effective promotion the film may just sit there undiscovered. However, if a film is financed by a crowd, one starts with a community backing the project, and each member has an incentive to spread the word about the film. As the major studios have seen, a film that receives bad word--of-mouth on opening weekend falls faster and harder than ever before, while at the same time, an unknown title can quickly catch fire and become an overnight sensation. Moreover, funds could be used for advertising and distribution provided that use is disclosed to investors.

The potential for crowdfunding looks promising. There are many examples of enterprising filmmakers who have already funded films with crowd sourced donations. In these instances, the donors have no expectation of sharing in any financial return, but have the satisfaction of supporting a project they believe in. They could also be given t-shirts, a DVD of the completed movie, a screen credit or an invitation to the wrap party or premiere screenings. In other words, they receive benefits not considered an equity interest and therefore not subject to state and federal security laws. However, filmmakers need to cautious if they decide to fund a film through crowdfunding. They need to make sure they do not overpromise what investors may receive or they could be liable for fraud. One of the major safeguards in the legislation for investors is that offers to investors need to be made through a Broker-Dealer or a funding portal that is registered with the SEC under rules to be developed. These intermediaries will be responsible for trying to keep the fraudsters out of the system and offer some comfort to investors that they are not investing with a Nigerian con artist who last week was soliciting you for help in transferring millions of dollars as part of some internet scam.

The SEC has 270 days to implement additional regulations, and it is not clear at this time how restrictive or liberal these rules may be. The SEC is inviting the public to send in comments on each of the seven titles of the law including the crowdfunding provision, which is Title III. This is an opportunity for filmmakers to express their concerns about the rules that will be adopted to enforce provisions of the JOBS act. Filmmakers can submit comments via either email or on the SEC website.

“... Independent production, handmade and filmed with many fights on the side of its creator, December Riots, comes to remind us the life we never lived, the fight we never fought and the reasons we got here, with bowed heads and humiliated lives ... " Chrisostomakis Laktaridis

FRANK CAPRA

"Film is a disease. When it infects your bloodstream, it takes over as the number one hormone; it bosses the enzymes; directs the pineal gland; plays lago to your psyche. As with heroin the antidote to film is more film".

JONAS MEKAS

"In the very end, civilizations perish because they listen to their politicians and not to their poets".

JOSEPH LOSEY

"Film is a dog: the head is commerce, the tail is art. And only rarely the tail wag(-s) the dog".

ABEL GANCE

" It will now be easier to understand why I have come to create Napoleon, because he was a paroxysm in his time, which was a paroxysm in history. General Bonaparte lies at the edge of a maelstrom, a lucid observer, whereas the Emperor lies in the whirlpool, is dragged into it and loses his self-control.

Bonaparte is not dragged off by this current. He watches and observes; he is master of his fate. He can halt it should he wish to. Napoleon cannot. He has neither the time nor the means to do so. He must go where fate leads him; that is his tragedy, the one I shall try to compose with the music of light".

ALFRED HITCHCOCK

"Luck is everything... My good luck in life was to be a really frightened person. I'm fortunate to be a coward, to have a low threshold of fear, because a hero couldn't make a good suspense film".

STANLEY KUBRICK

"

Any time you take a chance you better be sure the rewards are worth the risk because they can put you away just as fast for a ten dollar heist as they can for a million dollar job."

GEORGE LUCAS

“You have to find something that you love enough to be able to take risks, jump over the hurdles and break through the brick walls that are always going to be placed in front of you. If you don't have that kind of feeling for what it is you are doing, you'll stop at the first giant hurdle.”

STEVEN SPIELBERG

“I dream for a living.”

BRIAN DEPALMA

"The real trouble with film school is that the people teaching are so far out of the industry that they don't give the students an idea of what's happening".

JAMES CAMERON

"People have asked me if I am pessimistic or optimistic about the future and my answer has been recently that I am pessimistic about systems and optimistic about individuals."

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